How does Discovery work?

summereire

Hi, I'm doing conflict resolution and am looking at the legal system and in civil cases I'm clear on everything that happens up to the point of completing pleading, and then have a fair sense of what happens from trial on, but what are the steps inbetween?

Is this whole process known as Discovery, or just a part of it? In particular are interrogatories always sent, or is this optional? And by what method are specific documents requested?

I've been looking online for a step by step Irish guide to this but seem to be finding US examples that I'm not sure are relevant. I found the court rules quite good for other topics but not so clear for this.

Thanks!

NoQuarter

summereire wrote: »

Hi, I'm doing conflict resolution and am looking at the legal system and in civil cases I'm clear on everything that happens up to the point of completing pleading, and then have a fair sense of what happens from trial on, but what are the steps inbetween?

Is this whole process known as Discovery, or just a part of it? In particular are interrogatories always sent, or is this optional? And by what method are specific documents requested?

I've been looking online for a step by step Irish guide to this but seem to be finding US examples that I'm not sure are relevant. I found the court rules quite good for other topics but not so clear for this.

Thanks!

Interrogatories are not mandatory but can be used as a way to save time and cost by asking questions. Particulars are similar. One side will send a letter seeking particulars which is just a number of questions. There can also be a request for further particulars if the answers arent satisfactory.

Discovery is whereby one party requests a list of documents in the other sides possession (or documents they can get their hands on). Making discovery is just sending back a list of what you have and whether any of the documents are privileged. Once the requesting party gets the list, they can apply to have any of the documents inspected. Inspection is where the documents or articles as the case may be, are actually handed over.

Particulars and interrogatories are part of the pleadings. Discovery and inspection are for the interim.

summereire

NoQuarter wrote: »

Interrogatories are not mandatory but can be used as a way to save time and cost by asking questions. Particulars are similar.

Great, thanks for that clarification. Why would one use an interrogatory rather than a notice for particulars, do they have different scope? Can a Defendant refuse to answer a question in one that can be answered in another?

NoQuarter wrote: »

Discovery is whereby one party requests a list of documents in the other sides possession (or documents they can get their hands on). Making discovery is just sending back a list of what you have and whether any of the documents are privileged. Once the requesting party gets the list, they can apply to have any of the documents inspected. Inspection is where the documents or articles as the case may be, are actually handed over.

I see, is this list of documents requested in a notice for particulars or interrogatory or is there a separate way that it is requested?

NoQuarter

summereire wrote: »

Great, thanks for that clarification. Why would one use an interrogatory rather than a notice for particulars, do they have different scope? Can a Defendant refuse to answer a question in one that can be answered in another?



I see, is this list of documents requested in a notice for particulars or interrogatory or is there a separate way that it is requested?

Interrogatories are questions relating to the evidence whilst particulars relate to the case itself. So its a case of "what shoes was he wearing" versus "what was the alleged breach" etc.

Dont see interrogatories used that much in practice though. Maybe others have seen them more than I have.

The list of documents is requested in a voluntary letter for discovery. If the letter is ignored or refused, an application for discovery is made to court and both parties have a row about what should be discovered.

Tom Young

I've seen one interrogatory, one single question, blow a multimillion Euro Commercial Court dispute. Though they are covered by O.63A more properly.

summereire

NoQuarter wrote: »

Dont see interrogatories used that much in practice though. Maybe others have seen them more than I have.

The list of documents is requested in a voluntary letter for discovery. If the letter is ignored or refused, an application for discovery is made to court and both parties have a row about what should be discovered.

I see, so in practice after summons/response/conterclaim/response it's often a case of Notice For Particulars to clarify details, Discovery of documents and then to trial? Are there any other key aspects I'm overlooking?

Is the letter for discovery of documents just a letter asking for the documents?

McCrack

The party seeking discovery must set out the category of documents sought and the reasons for seeking them. The courts do not allow what is referred to as "fishing expeditions". The discovery sought must be relevant to the fair disposal of the proceedings.

For example in personal injury cases the defendants will normally seek discovery of the plaintiff's medical records particularly if the plaintiff has prior accident or injury history. The plaintiff's solicitor will normally seek to limit the amount or time period requested.

summereire

McCrack wrote: »

The party seeking discovery must set out the category of documents sought and the reasons for seeking them. The courts do not allow what is referred to as "fishing expeditions". The discovery sought must be relevant to the fair disposal of the proceedings.

For example in personal injury cases the defendants will normally seek discovery of the plaintiff's medical records particularly if the plaintiff has prior accident or injury history. The plaintiff's solicitor will normally seek to limit the amount or time period requested.

Got you. So if I understand correctly, a letter is sent solicitor to solicitor asking for specific documents that are relevant to the case such as medical records for personal injury, maps/title docs for property disputes etc rather than general documents for their own sake.

If they are not sent then presumably a motion is filed with the Court requesting them?

Is there actually any onus on the Plaintiff to gather together certain documents in advance of the case or is it just a matter of them satisfying themselves that they have what they need for their case?

McCrack

summereire wrote: »

Got you. So if I understand correctly, a letter is sent solicitor to solicitor asking for specific documents that are relevant to the case such as medical records for personal injury, maps/title docs for property disputes etc rather than general documents for their own sake.

If they are not sent then presumably a motion is filed with the Court requesting them?

Is there actually any onus on the Plaintiff to gather together certain documents in advance of the case or is it just a matter of them satisfying themselves that they have what they need for their case?

Yes a letter for voluntary discovery will be sent setting out the categories of documents sought and the reasons for seeking them. The other side can reply seeking to limit the scope and/or temporal scope. If the sides can't agree the party seeking the discovery can Motion the other side and essentially the Court will then decide on the matter.

There is no onus on a Plaintiff to gather documentation nor is there on a defendant in advance of a case. Willfully destroying documentation/evidence can be serious if it can be shown it was done to frustrate justice.

Preservation of evidence is important and a defendant will be put on notice not to destroy documents or other evidence very early in the claim by a letter called a third party warning letter.

NoQuarter

summereire wrote: »

I see, so in practice after summons/response/conterclaim/response it's often a case of Notice For Particulars to clarify details, Discovery of documents and then to trial? Are there any other key aspects I'm overlooking?

There can be so much more to it depending on the particular case but that is the general gist of it.

summereire

Fabulous, that's made it much clearer- thanks very much!

Condatis

When an order for discovery requires a defendant to produce a great number of documents to which he does not have ready access there can be a significant retrieval cost.

Where the defendant can not meet that cost and thus can not satisfy the order of the Court for discovery what his position be?

E.g. Details of financial transactions over a number years where accounts have been closed or are dormant and where some of the banks are no longer represented in Ireland.

sarah marie

McCrack wrote: »

The party seeking discovery must set out the category of documents sought and the reasons for seeking them. The courts do not allow what is referred to as "fishing expeditions". The discovery sought must be relevant to the fair disposal of the proceedings.

For example in personal injury cases the defendants will normally seek discovery of the plaintiff's medical records particularly if the plaintiff has prior accident or injury history. The plaintiff's solicitor will normally seek to limit the amount or time period requested.

So when the defendents ask the plaintiff solicitor for the notice of particulars,the plaintiffs solicitor/barrister replys and they state that the plaintiff was in another accident 8yrs ago,do they then seek discovery?
or do all the details of the previous accident be filled in the reply to the notice of particulars?

McCrack

Yes the defendant solicitors may seek discovery of the plaintiff's medical records if the previous injuries are relevant to the current injuries complained of.

Any previous accidents/injuries must be disclosed at particulars stage. It would normally be sufficient to simply state the year and a brief description of the accident and injuries and whether any compensation was claimed.

sarah marie

Does the defendents look for "notice of particulars" and "discovery" before a case can be listed for trial?

McCrack

Particulars will be looked for before the matter is set down for hearing.

Discovery can be sought in the Circuit Court at any time, in the High Court it's normally after the defence is filed or in other words when the pleadings have closed or finished. However strictly speaking in the High Court discovery cannot be sought before the case is listed for trial but like I said in practice it's often done early in the proceedings or when pleadings have closed.

sarah marie

That's interesting.so when the plaintiff,s solicitor/barrister replys to the notice of particulars for a high court case,they give all the dates/doctors/any previous injuries in the reply and if the defendants want to look in to it any more they seek discovery after the case is listed.?
But it would make sence for the plaintiff to gave all the information in the reply of notice of particulars,so the defendant could not drag another few months out of it seeking discovery.
So the plaintiff can seek the case to be listed after they reply to the notice of particulars.?

McCrack

It depends Sarah, no two cases are the same. When and what to request/furnish in discovery is more a matter of tactics and strategy specific to the case.

The plaintiff can set the case down in the queue of cases once the defence is filed. Whether it's ready to get on is another question.

Tom Young

sarah marie wrote: »

That's interesting.so when the plaintiff,s solicitor/barrister replys to the notice of particulars for a high court case,they give all the dates/doctors/any previous injuries in the reply and if the defendants want to look in to it any more they seek discovery after the case is listed.?
But it would make sence for the plaintiff to gave all the information in the reply of notice of particulars,so the defendant could not drag another few months out of it seeking discovery.
So the plaintiff can seek the case to be listed after they reply to the notice of particulars.?

I'm not sure you're grasping this.

Particulars of Pleading:

Particulars are designed to elucidate the case being made, or the case that is being defended. Example: I deny x. You might then ask something about x if it material via a Particular on the Pleading.

Discovery:

Parties in an action my request that the other make discovery on oath of documents which are or have been in his possession or power, relating to any matter in question therein. This can also be ordered. Some other posters have dealt with this.

Justice Hogan recently delivered Judgment on the issue of Particulars. It appears that this has become a glorious art form.

Delays may not be as tolerated as they were in the past for a number of reasons.

NoQuarter

Tom Young wrote: »

I'm not sure you're grasping this.



Justice Hogan recently delivered Judgment on the issue of Particulars. It appears that this has become a glorious art form.

I also recently heard Charlton say that he would do away with particulars altogether if he could!

Tom Young

NoQuarter wrote: »

I also recently heard Charlton say that he would do away with particulars altogether if he could!

I would also promote the summary execution of barristers who can not and do not plead properly. There is no excuse for sloppy work when pleading.

If Particulars are raised and are voluminous - one of two things occurs:

1. The claim or defence is poorly drafted;

2. Someone is seeking to delay matters.

Oh, and the response: "That is a matter for evidence" really does not cut the mustard most of the time.

summereire

How, in practice, does the Court respond to 'delaying' tactics such as not replying to paperwork etc? Is it quite casual, quite strict or does it vary?

Tom Young

summereire wrote: »

How, in practice, does the Court respond to 'delaying' tactics such as not replying to paperwork etc? Is it quite casual, quite strict or does it vary?

With the Ordering up of the required information (Particulars) or documents (Discovery) with an order that the party in default pay the Costs of the party who had to bring the Motion/Application before the Court to have the matter ruled upon.

Another pet hate: Costs in such matters are extremely high ... yet lawyers often balk at them ... particularly young lawyers who might not have comprehended that their peculiar form of under-preparation may have cost their client a few thousand Euro.

summereire

McCrack wrote: »

The plaintiff can set the case down in the queue of cases once the defence is filed. Whether it's ready to get on is another question.

Does the Court check that it's ready then before trial itself happens?

McCrack

No the parties lawyers will know and normally agree between them to call the case on and tell the court its ready to be heard.

sarah marie

What do you mean set down for trial after "defence filed"?

Tom Young

sarah marie wrote: »

What do you mean set down for trial after "defence filed"?
Is that when they reply to the notice of particulars and is it the same process when liability is not an issue?

Sorry now.

I am not sure I like where this is all going.

summereire

sarah marie wrote: »

What do you mean set down for trial after "defence filed"?
Is that when they reply to the notice of particulars and is it the same process when liability is not an issue?

The notices of particulars are just that, notices to clarify details contained in the Defence, Counterclaim etc.

It's rather similar to what happens in conflict resolution, but just a much more formal version of it.

sarah marie

thanks:)

RenateCrane

This legitimate method could be long along with challenging no matter what form of dispute you could be involved in. When you finally discover a lawyer, as well as opt to signify on your own, along with you've truly filled out ones lawsuit with the courtroom.

234

???

NoQuarter

RenateCrane wrote: »

This legitimate method could be long along with challenging no matter what form of dispute you could be involved in. When you finally discover a lawyer, as well as opt to signify on your own, along with you've truly filled out ones lawsuit with the courtroom.

You should become a draftsman.

gozunda

Tom Young wrote: »

I would also promote the summary execution of barristers who can not and do not plead properly. There is no excuse for sloppy work when pleading.

If Particulars are raised and are voluminous - one of two things occurs:

1. The claim or defence is poorly drafted;

2. Someone is seeking to delay matters.

Oh, and the response: "That is a matter for evidence" really does not cut the mustard most of the time.

I like the humour above but serious question - In relation for example to Particulars that are in the main responded to with the stock phrase as highlighted above "That is a matter for evidence" - what if any is the remedy? Are such tactics generally looked upon unfavourably by the judge etc? And importantly what can be done practically to circumvent or deal with such tactics?

Pro Hoc Vice

gozunda wrote: »

I like the humour above but serious question - In relation for example to Particulars that are in the main responded to with the stock phrase as highlighted above "That is a matter for evidence" - what if any is the remedy? Are such tactics generally looked upon unfavourably by the judge etc? And importantly what can be done practically to circumvent or deal with such tactics?

A motion can be brought to force the other side to answer, if the Judge agrees its a matter for evidence then fine, if not then the other side will have to answer by order of the Court.

Tom Young

gozunda wrote: »

I like the humour above but serious question - In relation for example to Particulars that are in the main responded to with the stock phrase as highlighted above "That is a matter for evidence" - what if any is the remedy? Are such tactics generally looked upon unfavourably by the judge etc? And importantly what can be done practically to circumvent or deal with such tactics?

Procedurally, a Motion for Further and Better Particulars is brought. It is brought by Notice of Motion and Grounding Affidavit. In reality, the case of McDonagh v Sunday Newspapers deals with the test and when Particulars are relevant and can be ordered up.

To answer the question, the remedy is an Order with Costs against the party refusing to particularise properly. The money involved in the Costs penalty there is low though.

Tactics: Depends. If there is enough in the Pleadings - a broad and accurate outline, then the Particulars may not be granted by order.

Further and Better Motions, usually have the desired result.

Another response I use (frequently):

"This is not a Particular on the Pleadings. This request is a request for Discovery (or information). Without prejudice to the generality of the foregoing, please find enclosed (or please make the appropriate request or bring the appropriate Motion)."

Now, another most controversial of matters (for those who couldn't be arsed checking) - Outstanding Particulars do not effect the closure of pleadings. Particulars, while on the pleadings, are not pleadings.

McCrack

Are you saying a plaintiff can push for a defence without having delivered replies? Or having delivered replies but the other side raise rejoinders a plaintiff can still push for a defence?

Tom Young

If a Summons -> Statement of Claim issue and Defence and Reply are delivered, absent Particulars, pleadings are closed. Particulars are irrelevant - they are not treated as pleadings.

McCrack

Surely if pleadings are closed particulars can't be raised but if they are raised before the defence is delivered they must be answered?

Tom Young

Yes, on the closure. Yes, though if the Parties close the pleading by, lets say traversals, then it won't matter if the Particulars are outstanding.

Been quite a number of cases before Commercial List recently dealing with this issue.

McCrack

I practise plaintiff PI work. I would never consider threatening a motion for defence without delivery of replies and I think if I did I'd be told pretty quick that it's not in order. However I appreciate that's PI and other areas of practice can be different.

Tom Young

Yes, indeed. It is sensible and most PI folks aren't afraid to chat to one another.

I am referring more (though not exclusively) to Defamation, Chancery and Commercial.

McCrack

Outside my experience them but interesting all the same. Thanks